Over the past few decades, there has been a proliferation of criminal statutes and regulations carrying criminal penalties at the federal level. As Congress debates criminal justice reform, “mens rea” reform should be on the table.

For years, Sen. Orrin Hatch, R-Utah, has introduced and called for legislation to require federal criminal laws and regulations to include a mens rea requirement for prosecution. Mens rea, Latin for “guilty mind,” deals with the mind-set of a person accused of committing a crime.

Mens rea requirements can include requiring prosecutors to prove that an accused person “knowingly,” “willfully” or “intentionally” violated the law. However, while the federal government has grown significantly over the past several decades, so too has the list of criminal statutes and regulations carrying criminal sanctions.

According to the Heritage Foundation, there are about 5,000 federal criminal statutes and upward of 300,000 criminal regulatory offenses on the books, though precisely how many there are isn’t known. While many do have some mens rea standards in place, many don’t, and there is often plenty of ambiguity of the sort that shouldn’t be acceptable in the context of criminal sanctions.

To provide greater clarity, last October, Hatch, joined by Sens. Mike Lee, R-Utah, Ted Cruz, R-Texas, David Perdue, R-Ga., and Rand Paul, R-Ky., introduced the Mens Rea Reform Act of 2017. The law called for “a default intent standard for all criminal laws and regulations that lack such a standard.”

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Lee said in a statement. Unfortunately, the proposal failed to gain traction. However, Hatch, joined by Sen. Charles Grassley, R-Iowa, has since reintroduced a more moderate version of the bill to achieve the same end.

The 2018 version would “establish an extended process for federal agencies and Congress, with the assistance of a National Criminal Justice Commission and input from the public, to clarify the mens rea requirements in our existing criminal laws.”

This approach, which Hatch concedes is more “incremental” than previous efforts, would certainly be an improvement over the status quo.

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